Opinion
March 12, 1952.
Appeal from Workmen's Compensation Board.
The question here is solely one of continuance of dependency. The decedent, whose death resulted from an industrial accident July 1, 1947, lived with his father and mother, and contributed to that household. Based on a claimed dependency of the mother alone, an award was made to her in January, 1948, of $10.50 a week. On October 26, 1950, the husband appeared before the referee and stated on behalf of himself and his wife that the family's position had so changed financially that the dependency of the wife had terminated. The wife testified in December of that year that she wanted the payments to continue, but she testified to no fact showing a continuance of dependency. The husband's income has increased and he has given to the wife with whom he continues to reside an additional amount monthly since the dependency award was discontinued in April, 1950, equivalent to the amount of such dependency award. The general economic condition of the family has improved on the basis of investments and other causes to such an extent since the death of the decedent that there was no substantial evidence before the board of a continuance of the dependency during the period embraced in this record, and the board was bound to find that it had not continued ( Matter of McGuinn v. Woolworth Co., 277 App. Div. 106 6). Decision and award reversed, on the law, with costs to the appellants against the Workmen's Compensation Board, and the claim remitted to the board. Foster, P.J., Brewster, Bergan and Coon, JJ., concur; Heffernan, J., dissents, and votes to affirm.